Guidance for Contracting for Expert Witnesses

Before You Begin:  Contracting versus Other Retention Methods

Key steps in the contracting process are outlined and discussed below.

In certain cases, the AGENCY may be able, or legally required, to use other, non-contract methods in order to retain the expert or consultant.  These cases include a private individual serving on an unpaid basis, who must be appointed as a Special Government Employee (SGE) subject to certain ethics and length-of-service limitations, and an employee of another Government agency, where a detail or other reimbursable or non-reimbursable agreement in lieu of a contract may be appropriate or necessary.  In these cases, contact the Office of General Counsel (OGC) and Human Resources as early as possible to obtain specific guidance and instructions.

Retaining an Expert or Consultant by Contract

If you are using a contract, there are several important steps to take to ensure the outside expert or consultant is secured in a timely and efficient manner.  Below are key steps and considerations in the process.  Do not wait until the last minute, as some of these steps may require significant advance discussion and negotiation with the prospective expert or consultant, as well as consultation with other offices within the AGENCY.  For additional guidance, consult the Contracting Branch and OGC.

1.       Identify the Need and Gain Approval for Expert Witness

The requesting office will identify that they need an expert witness, along with the expected timeframe and cost for the witness, then get approval from their management/leadership to use an expert witness.  The requesting office should also identify a person who will lead the effort and will serve as the Contracting Officer’s Representative (COR).  The COR may be the lead attorney or another attorney assigned to the case, or an AGENCY staff person (not a contractor) who will be familiar with your matter and have day-to-day or other direct and regular contact with the expert or consultant.  CORs must complete the training before the contract is awarded, so starting the training as soon as the COR is identified will help expedite the process if this is the first time the person has served as a COR.

2.       Notify the Budget and Contracting Offices
After identifying and getting approval for an expert witness, notify the Contracting Office via email at __________that you need an expert witness.  Your email should include the Requestor’s name and contact information; name of bureau/office; the type of expert witness needed; estimated contract value; and an estimated contract award date/need by.

3.       Contracting Officer is Assigned
Once the Contracting Branch is notified, they will assign a Contracting Officer.  You should receive an immediate email back notifying you that they have received your request and will also include a link with the following information: Information to assist with identification of  your expert; SAM Registration Guidance Package for the Expert Witness identified (along with FAQs); COR training guidance and briefing materials; Acquisition Planning Templates as well as other related materials.

4.       Identify your Expert and Acquisition Planning
The requesting office will begin identifying your expert and acquisition planning after receiving email notification back from the Contracting Branch.  They will identify organizations or individuals whom might serve as an expert and identify a cost range.  If you have identified an expert witness, you may provide the Expert Witness SAM Registration Guidance to them so that they can begin planning.  During acquisition planning, the requesting office will write a Transmittal Memorandum; Performance Work Statement (PWS); a Justification & Approval for Other than Full & Open Competition (J&A); and an Independent Government Cost Estimate (IGCE).

5.       Unfunded Request (UFR)
If additional funds are required, budget staff will prepare and submit an UnFunded Request (UFR) to obtain approval for additional funds.

6.       COR Training
COR training must be completed prior to contract award and assumption of duties as a COR for expert witnesses.  The person identified to be the COR should start the required training prior to contract award, so they are prepared to assume their duties immediately upon contract award.  Mandatory training consist of _____hours of approved training through the Federal Acquisition Institute Training Application System (FAITAS) and an Expert Witness COR training briefing that is offered at AGENCY through ________.

7.       System for Award Management (SAM) Registration
In general, all Agency contractors, including experts and consultants, must be registered in the SAM,, prior to contract award.  SAM serves as a central Government registry of all federal contractors for tax, debt collection, statistical, and other purposes (e.g. whether the contractor is debarred from receiving a federal contract).

Many experts and consultants do not have experience with SAM, which requires the individual or firm to use its existing Dun & Bradstreet commercial identification (DUNS) number or to obtain one (which can be done quickly online and it is free).  The SAM registration process can be lengthy and complicated.  For additional guidance about registering in SAM, refer to the Expert Witness SAM Registration Guidance information or contact the Contracting Branch.

Because registration issues can significantly delay or even derail the contracting process, inform your prospective experts or consultants of this requirement as soon as possible; encourage them to start the SAM registration process without delay; and ask them to keep you informed of any difficulties they encounter (or issues they may have) in completing the registration process.

If during the registration process the expert has difficulties that will delay their SAM registration, staff can seek a temporary waiver (deviation) of the SAM registration requirement.  The temporary deviation will allow AGENCY to award the contract to the expert and allow the expert to begin providing services, although the expert will not be paid until the SAM registration is completed.  If this situation arises, contact the Contracting Branch immediately upon identifying the need so that the Contracting Officer can plan for a temporary deviation.  Preparing a temporary deviation request for approval will require coordination through leadership and approval from the AGENCY.

If an expert or consultant cannot register in SAM, contact the Contracting Branch immediately.  In extreme cases, staff may be able to seek a deviation from the AGENCY’s Executive Director.  To qualify, staff must forward a justification memorandum explaining why the expert or consultant is unwilling or unable to complete registration and whether there is any other qualified alternative expert or consultant that is available and able to register.  Additionally, the staff will be required to ensure the expert or consultant executes any representations and certifications that are required by law and cannot be waived.  Gaining the waiver and executing the necessary representations and waivers can be lengthy and add significant time to getting your expert on contract since additional terms and conditions must be negotiated with the expert.  If you must use a SAM deviation, plan for additional time.

Another more rapid alternative, if the expert or consultant refuses to register in SAM, is to use a third party contractor to contract with the expert and have them to subcontract the work to the expert.  This is a costlier alternative since the third party contractor will charge administrative fees, but could be a viable alternative if time is of the essence.  Coordinate with the Contracting Branch if this alternative becomes a necessity.

8.       Create Purchase Request (PR) and Secure Funds
When acquisition planning is complete and the requesting office has completed the acquisition planning documents (PWS, J&A, & IGCE) and secured the appropriate funds for the expert witness contract, the requestor completes a purchase request and submits it to the Contracting Branch.  At this point, the Contracting Branch takes charge of securing a contract.

9.       Procure the Services (Contracting Office)
After the Contracting Officer (CO) receives the PR, he/she has a myriad of activities to complete in order to award a contract to the expert/consultant.  First, the CO must print and review all of the acquisition planning documents provided from the requester to ensure they are complete, build the contract file, and then the CO must confirm pricing with the expert.

The CO must also create the contract shell in “Insert: Name of AGENCY’S Contract Writing System” and add the appropriate contract clauses, terms, and conditions to the contract shell, in addition to the Contract Line Item Numbers (CLINs).  Finally, the CO must include any options, determine the contract type, make a fair and reasonable price determination, and create the determination & findings to justify the decisions they made that led to the contract decisions and award.

10.   Quality Control Review
When the Contracting Officer completes the contract and is ready to make the award; he/she must have a Quality Control (QC) review from a procurement analyst or more senior Contracting Officer to ensure that the contract is error free and legally sound.

11.   Finalize contract
After the Quality Control review, the CO sends the contract to the expert/consultant for review and signature.  If, within the contract, there are no terms and conditions the expert wishes to negotiate the expert signs and returns the contract for the CO’s signature.  The CO distributes the contract to all appropriate parties (finance/budget, FPDS-NG, COR, and expert/consultant) for contract execution.

12.  Manage the contract
When the contract is finalized, the expert renders their services and the COR monitors the expert’s performance; approves invoices; monitors the funds expended and available on the contract; coordinates with the CO if there are any necessary changes to the contract; and provides technical direction to the expert.